Mosley and Alban

[2016] FamCA 34

FAMILY COURT OF AUSTRALIA

MOSLEY & ALBAN [2016] FamCA 34

FAMILY LAW – Non-compliance – costs.

Family Law Act 1975 (Cth)

APPLICANT: Mr Mosley

RESPONDENT: Ms Alban

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: MLC 1463 of 2011

DATE DELIVERED: 22 January 2016

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 22 January 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Williams

SOLICITOR FOR THE APPLICANT: Coote Family Lawyers

COUNSEL FOR THE RESPONDENT: Ms Robertson

SOLICITOR FOR THE RESPONDENT:

COUNSEL FOR THE
INDEPENDENT CHILDREN’S LAWYER

SOLICITOR FOR THE
INDEPENDENT CHILDREN’S LAWYER

Resolve Conflict Collaborative Law & Mediation

Ms Agresta

Victoria Legal Aid

Orders

1. In respect of the orders made on 11 December 2015, the following alterations shall apply:

   (a)   Paragraphs 4 and 5 are discharged;

   (b)  Paragraphs 8 and 10 are discharged;

   (c)  The time in paragraph 2(a) is extended to 29 January 2016.

2. That the respondent mother pay the applicant father’s costs fixed in the sum of $900 but there be a stay in respect of the payment of that for a period of four weeks from the date of this order.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Mosley & Alban has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER:  MLC 1463 of 2011

Mr Mosley

Applicant

And

Ms Alban

Respondent

Independent Children’s Lawyer

REASONS FOR JUDGMENT

1. This matter was listed this morning at the request of the Court because of the failure of the respondent to comply with an order made by Bennett J on 11 December in respect of the filing of her trial material.  Notwithstanding she was the respondent, she was to file first because, I presume, her Honour concluded that, as the mother was proposing the children relocate internationally, she should file first.

2. The mother filed her material on 20 January through the Court’s portal notwithstanding that she was obliged to file by 8 January.  Filing on the Court’s portal does nothing to overcome the problem in the Rules that, if a party is obliged to comply with a timetable and fails to do so, the filing is a nullity. 

3. No one really objects to the filing of that material, because the reality is, from the applicant father’s point of view, he has some difficulties with the time he is permitted with the children and he wants the case heard.

4. After much discussion, it seems common ground from the respondent’s point of view, and also from the independent children’s lawyer’s perspective, that the late filed evidence of the mother hardly supports an order for an international relocation.  Despite that, initially, the respondent wished to proceed.  After discussion, it now seems that she does not want to proceed within the timeframe originally anticipated by Bennett J.

5. The positions have materialised as follows:  the mother is to have the matter adjourned for one or two months to address the evidentiary issues canvassed in the discussion.  I have pointed out the difficulties from the resources point of view and on any view it would be unlikely that this Court would be able to find those resources in the month of March or April. 

6. The father’s position is that he opposes the vacating of the trial for two reasons:  one is because of the fact that he said there is no basis for the international relocation to proceed and he, therefore, wishes to seek to have it dismissed or struck-out.  The second issue is that he has, as I have already observed, some difficulties of his own and he wants stability for the children, at least for this year.  He opposes the vacating of the trial date and wants to proceed, at least on those issues.  The independent children’s lawyer, in my view quite properly, has indicated she does not adopt a position one way or the other.

7. Having regard to the effort that Bennett J went to to get this case up listed it should not simply put it off.  If it was, that would be putting off the father’s application in circumstances in where he is not content with the existing arrangements.  Under those circumstances, I propose not to vacate the trial date, but to simply vary the orders of Bennett J as I earlier indicated in discussion.

8. The applicant will now be the first to conduct the proceedings.  If he so desires, he can bring an application to summarily dismiss the international relocation application.  I do not propose to  make an order in relation to the application of the rules of evidence, because it may very well be that the international relocation case cannot proceed at that point anyway.

9. I do propose to discharge paragraphs (4), (5), (8) and (10) of the orders made by Bennett J of 11 December 2015, predominantly because there is no point in them.  I also propose to note that the parties will not be going to the round table conference that had been anticipated on 2 February because their positions are so polarised that it would be a pointless exercise.

   
   
   

   RECORDED  :  NOT TRANSCRIBED
   
   

10. This is also an application for costs by the applicant father on the following basis:  the matter was before Bennett J on 11 December 2015 and effectively given an urgent passage for a trial to commence before me on 11 February, albeit as a reserve, and, as a consequence, her Honour made orders for the filing of material.  There can be no doubt that the respondent was ordered to file her material by 8 January.  The solicitor for the mother, did not contact the other parties prior to Christmas or, indeed, during the Christmas period, to indicate that she, on behalf of her client, was not going to be able to meet the timetable.  She also did not tell her client that she could not meet the timetable or that the client should do the affidavit herself.

11. When a party fails to comply with a timetable, the Court generally brings the matter back to find out why there is a problem.  The material of the mother filed on 20 January without any suggestion that a request was going to be made for it to be admissible nunc pro tunc.  On that basis, I can only conclude that there was a rather flippant approach to the filing of the material.

12. Section 117 of the Family Law Act 1975 (Cth) (“the Act”) provides that, in proceedings under the Act, each party shall bear their own costs unless there are circumstances that justify departure from that principle. If the Court considers there are such circumstances, it must contemplate the matters under section 117(2A) before it makes an order.

13. The matters here clearly indicate that the father was obliged to be here today because the Court wanted to know what was going on in the trial, because the mother had not complied with orders.  There can be no criticism of the father.  He attended and, indeed, his solicitor quite appropriately attended.  There has been some suggestion that there was no necessity for the solicitor to brief counsel;  that is a nonsense argument.  It is a matter between the client and the solicitor and counsel as to who attends, but it is a question for the Court to determine what costs should be paid by the other side, if an order for costs is made.

14. Here, the father seeks costs of $1250, which his counsel indicates is about half of his usual brief fee and no solicitor costs are sought.  It is now after 12 noon and, therefore, the parties have been engaged in this matter for some hours.  It seems to me that, on the basis that the fault that gave rise to this hearing is squarely on the shoulders of the mother, it is hard for me to conclude that there is any logical reason why the father should be out of pocket for complying with a requirement of the Court that he attend today.  There are therefore justifiable circumstances to depart from the principle that each party pays their own costs. 

15. An argument has also been put on behalf of the mother that any costs order should be reserved.  The difficulty with that, of course, is that it simply means that the matter is going to be argued on another occasion and oftentimes the impetus of what has been discussed today gets lost.  It seems to me that the appropriate order to be made is for any order for costs to be paid. 

16. The first position of the mother is that the application should be dismissed. In my view, that would be inappropriate after I contemplate the matters in section 117(2A). It is true that I do not know the precise details of the financial circumstances of the party, but it has not been suggested that the mother is impecunious. As I understand the evidence to be led in respect of the international relocation case, she currently has a job and is currently seeking to better her position. The better view about her financial position can be gleaned from the fact that her own lawyer is charging her $350 per hour. On that basis, I think I can safely infer that she is not impecunious.

17. The father, too, seems to be in a position where he is not impecunious, but he may not necessarily have the same financial resources as the mother. The authorities are clear that the Court does not have to find the presence of any one particular aspect of section 117(2A) to make an order. The most fundamental issue in section 117(2A) lies in the fact that a party has not complied with a court order and, in my view, having regard to the discussion I have unfortunately had to have today, rather flippantly so. Order for costs should follow.

I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 22 January 2016.

Associate: 

Date:  1 February 2016